Citation Nr: 1022438
Decision Date: 06/17/10 Archive Date: 06/24/10
DOCKET NO. 05-32 524 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey
THE ISSUES
1. Entitlement to an initial, compensable rating for
residuals of a right ankle fracture.
2. Entitlement to an initial, compensable rating for a left
ankle disability.
3. Entitlement to an initial, compensable rating for right
knee tendonitis, from September 29, 2004 through June 7,
2005.
4. Entitlement to a rating in excess of 10 percent for right
knee tendonitis, from June 8, 2005 through October 31, 2005.
5. Entitlement to a compensable rating for right knee
tendonitis, from November 1, 2005.
6. Entitlement to an initial, compensable rating for left
knee tendonitis, from September 29, 2004 through June 7, 2005
7. Entitlement to a rating for left knee tendonitis in
excess of 10 percent, from June 8, 2005 through October 31,
2005.
8. Entitlement to a compensable rating for left knee
tendonitis, from November 1, 2005,
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Mishalanie, Counsel
INTRODUCTION
The Veteran had active military service from November 1995 to
November 1999.
This appeal to the Board of Veterans' Appeals (Board) arose
from an April 2005 rating decision in which the RO, inter
alia, granted service connection and assigned an initial, 0
percent (noncompensable) rating for each right and left ankle
and knee disability, effective September 29, 2004 (the date
of the claims for service connection). The Veteran filed a
notice of disagreement (NOD) in May 2005, and the RO issued a
statement of the case (SOC) in later that month. The Veteran
filed a substantive appeal (via a VA Form 9, Appeal to Board
of Veterans' Appeals) in September 2005.
Because the appeal involve requests for higher initial
ratings following awards of service connection, the Board has
characterized issues 1, 2, 3, and 6 (listed on the title
page) in light of the distinction noted in Fenderson v. West,
12 Vet. App. 119, 126 (1999) (distinguishing initial rating
claims from claims for increased ratings for already service-
connected disability). Moreover, while the RO has assigned a
higher, 10 percent rating for each right and left knee
disability, for the period from June 8, 2005through October
31, 2005, as higher ratings are available before and after
that period, and the appellant is presumed to be seeking the
maximum available benefit, the Board has characterized the
appeal as to these disabilities as encompassing issues 3
through 8 (listed on the title page). Id.; AB v. Brown, 6
Vet. App. 35, 38 (1993).
For the reasons expressed below, the matters on appeal are
being remanded to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the appellant when
further action, on his part, is required.
REMAND
The Board's review of the claims file reveals that further RO
action in this appeal is warranted.
Pursuant to 38 C.F.R. § 20.700 (2009), a hearing on appeal
will be granted to an appellant who requests a hearing and is
willing to appear in person. See also 38 U.S.C.A. § 7107
(West 2002) (pertaining specifically to hearings before the
Board).
In his September 2005 substantive appeal (VA Form 9), the
Veteran requested a hearing before the Board at the RO (i.e.,
a Travel Board hearing). The hearing was scheduled in
January 2010; however, the Veteran failed to report to the
scheduled hearing.
The Board notes that, during the pendency of this appeal,
prior to September 2009, all correspondence to the Veteran
was sent to an address on [redacted], New Jersey.
Although the claims file does not contain any notification of
a change in the Veteran's address, in September 2009, the RO
issued a rating decision and mailed it to the Veteran at an
address on [redacted].
Thereafter, in December 2009 and January 2010, the RO sent
letters to the Veteran notifying him of the time and place of
the Travel Board hearing; these letters were sent to the
address on [redacted]. The January 2010 letter was
returned by the United States Postal Service and stamped
"not deliverable as addressed". A February 2010 letter
from the Board to the Veteran was also sent to the address on
[redacted] and returned as undeliverable. The Board notes
that there is another address for the Veteran of record.
Thus, in this case, it does not appear that the Veteran
received notice of the scheduled Travel Board hearing. Under
these circumstances, the Board finds that a remand is
necessary to establish the proper current mailing address for
the Veteran and to afford him another opportunity for his
requested Travel Board hearing.
Accordingly, the matters are REMANDED to the RO for the
following action:
1. The RO should undertake appropriate
action to attempt to verify the Veteran's
current mailing address, to include
contacting him at the above-noted
addresses and contacting his
representative. The RO should document in
the claims file all requests and responses
in this regard.
2. The RO should notify the Veteran and
his representative of the date and time of
the hearing, in accordance with 38 C.F.R.
§ 20.704(b) (2009), by contacting the
Veteran at the appropriate address(es).
If the RO confirms the Veteran's correct,
current address, the RO should his hearing
notice to that address. If the RO does
not confirm a correct, current address for
the Veteran, the RO should send the
hearing notification to both recent
addresses of record, noted above.
After the hearing, the claims file should
be returned to the Board pursuant to
current appellate procedures.
The purpose of this REMAND is to afford due process and to
accomplish additional development and adjudication, and it is
not the Board's intent to imply whether the benefit requested
should be granted or denied. The Veteran need take no action
until otherwise notified, but he may furnish additional
evidence and/or argument during the appropriate time frame.
See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet.
App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2009).